Dunces or dodgers? - Babar Sattar - Saturday, March 17, 2012

Source : http://www.thenews.com.pk/Todays-News-9-98115-Dunces-or-dodgers

The writer is a lawyer based in Islamabad.

The prime minister has publicly declared that the choice before him is either upholding the Constitution that affords the president unconditional immunity and serving a six-month jail term for contempt of court or complying with the orders of the Supreme Court and thereby subverting the Constitution and being dragged to the gallows.

There are only two possible ways to understand this statement. The charitable view can be that the prime minister is a simpleton. Despite being the chief executive of this wretched country, he doesn’t even have a rudimentary understanding of our constitutional scheme of separation of powers, the role of the judicature as an independent pillar of state and its mandate to interpret and enforce the Constitution. And so when he laments that being the PM he is treated as a peon, the joke is really on us.

The more realistic hypothesis would be that the prime minister is deliberating poking fun at the constitutional processes, the rule of law and the directives of the Supreme Court. Whether or not the prime minister has already committed contempt by not complying with the NRO ruling will soon be decided by the apex court, but this latest statement could certainly amount to ‘bringing the judiciary into disrepute’ for purposes of Article 63(g) of the Constitution and ‘criminal contempt’ aimed at impeding the administration of justice. And this seems deliberate.

The unfortunate reality is that the prime minister’s stubborn disregard for court orders together with his sneering jibes promises political dividends, while abiding by the law and the Constitution and writing to the Swiss authorities would cause his career and his fortunes to dwindle.

The paradox that confronts rule of law in Pakistan is that it pays off to be a ruffian and a crook, both in public life and private. A law-abiding citizen insistent on going by the book and doing the right thing is an anachronism today. A conscientious man refusing to make his peace with rotten ‘ground realities’ is a peril for himself and his family. It was this conscientious man that rallied behind the rule of law movement and steered it to the realisation of its immediate objective.

He was out dancing in the streets on this day exactly three years back when the formal notification announcing the restoration of judges was issued because he felt Pakistan might have turned a page. He thought that with means (ie independent judges as neutral arbiters of the law) in place, the end (ie dispensation of justice to ordinary folks) would be in sight soon. Three tumultuous years later we are still stumbling in the woods with the conscientious man back in his cynical corner.

The restored judiciary has unfortunately not risen up to expectations. Leaving aside a handful of imprudent interventions, the disquiet is being caused by what our judiciary has not done as opposed to what it has done or is doing. The average citizen is as alienated by the instruments of justice today as he was back in 2007 or 2009. The National Judicial Policy has borne no fruit.

During a recent talk at the Federal Judicial Academy, the pain and frustration of district-level judicial officers was obvious. How do you dispense justice in an environment where lawyers assisting courts act like trade unionists and not providing them relief puts you in physical danger, asked one civil judge. In the name of dispensing quick justice and clearing our dockets by hurriedly deciding contested cases we have been transformed into butchers, declared another.

There has been no significant increase in the number of judges even though everyone agrees that our courts are understaffed and overworked and consequently any interaction between the ordinary citizen and such justice system is bound to brew resentment. A huge number of sanctioned positions at the high courts remain vacant, even though filling such vacancies after the 18th and 19th Amendments fall squarely within the domain of the judiciary.

The working of the Islamabad High Court has challenged the conventional wisdom that honesty is the primary attribute to look for in a prospective judge. It turns out that competence might just be as important. At this court having a case fixed for hearing and then having a substantive argument on the date fixed are two miracles not one. How long can ordinary citizens applaud the Supreme Court’s efforts to bring the mighty to justice when their personal interaction with law is all but benevolent?

In a sense the story of justice is the same as that of democracy. The benefit of the justice system or a representative system of democracy is simply not trickling down to the end-users and the supposed beneficiaries. So just as the average citizen feels no personal affront when a dictator suspends democracy and usurps power, is it that he is also not incensed when the prime minister wilfully strikes at the heart of rule of law by publicly indicting the competence and sincerity of the highest court of the land in interpreting the Constitution?

The point here is not to present the administrative failings of the Supreme Court and the high courts as justifications of the prime minister’s refusal to comply with binding judicial verdicts. It is to analyse the institutional, political and social realities of Pakistan that create incentives to disobey the law, on the one hand, and enable malefactors to get away such disobedience on the other.

Alexis de Tocqueville had famously observed in the 1830s that, “there is hardly a political question in the United States that doesn’t sooner or later turn into a judicial one.” If political and administrative questions were amicably resolved by and within the realm of the executive, there would be no need to seek judicial recourse. But when political resolutions fail and such failure impinges on legal rights of citizens, the courts cannot be expected to turn a blind eye under some notion of judicial restraint.

There are at least three factors that are throwing our courts in an overdrive. One, we are functioning essentially without a system of governance and the incompetence and corruption of the executive arm continues to create more grievances on a daily basis than it settles. Two, the legal authority vested in state institutions doesn’t match their self-perceived role, which then leads to breach of the law and the fundamental rights of citizens.

And three, our social norms, practices and notions of unconditional loyalty do not sit comfortably with rights such as those to equality, dignity, liberty and freedom of thought that are scribbled in our Constitution. We are fine with allowing universally accepted standards of human rights to be confined to the safe custody of black letter law, but are loath to uphold them in our real lives.

Whether it is the NRO case, the fake degrees case, the umpteen corruption cases, the Waheeda Shah case, the Asghar Khan case or the missing person’s case, it is (i) the treatment of state authority as a handmaiden of the authority-wielder, and (ii) prevalent institutional, political and social norms out of sync with the demands of rule of law, that explains why all roads lead to the courts.

We must understand that so long as our institutional, political and social norms remain within the present state of tumult and transition and the gap between the theory of law and our practice doesn’t shrink, the preponderant role of the judiciary will continue. During this time it is imperative that a healthy tug-of-war between coordinate branches of government that leads to a clearer demarcation of institutional boundaries and evolution of civil norms is not replaced by an ugly wrangle that begins to threaten both democracy and rule of law or pits these interdependent concepts against one another. And in that regard the prime minister crossed a bright line on Thursday.

Email: sattar@post.harvard.edu

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